SURVEYOR EKERETE E. ETUKUDO & ANOR. V. SURVEYOR E. B. AKPAN (2013)

SURVEYOR EKERETE E. ETUKUDO & ANOR. V. SURVEYOR E. B. AKPAN

(2013)LCN/6705(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 26th day of February, 2013

CA/C/162/2008

RATIO

WORDS AND PHRASES: ABUSE OF COURT PROCESS

Let me start a consideration of the issue by saying that the term “abuse of court process” is one generally applied to proceedings or processes of a court that are wanting in bona fide, frivolous, vexatious, oppressive. It may mean abuse or improper use of the legal processes of a court and always involves some bias, malice and deliberate desire to misuse and pervert processes of a court. The term is incapable of precise definition as if may manifest itself in various forms and ways depending on the peculiarities of a case. However, it is recognized in law that it is an abuse of a court process for a party to improperly use the issue of the judicial process to the irritation, annoyance and embarrassment of an opponent by instituting a multiplicity of actions on the same issues against him.” See Okafor v. Attorney-General, Anambra (1991) 6 NWLR (200) 59; Olutinrin v. Agaka (1998) 6 NWLR (554) 366 at 375; Saraki v. Kotoye (1992) 9 NWLR (264) 156 at 188; N.V. Scheep v. M.V.”S’ Araz” (2001) FWLR (34) 543 at 589. Per MOHAMMED LAWAL GARBA, J.C.A.

WHETHER A DEFENDANT IN THE UNDEFENDED LIST PROCEDURE IS REQUIRED TO SHOW THAT HIS DEFENCE WAS COMPLETE AND LIKELY TO SUCCEED IN HIS AFFIDAVIT

CONSIDERATIONS BEFORE THE HIGH COURT ENTERS A SUIT UNDER THE UNDEFENDED LIST

However, before a High Court enters a suit under the undefended list, it has the duty to consider the affidavit of the plaintiff filed in support of the application for the issuance of the writ of summons and be satisfied as to the following:-

a) that the claim is in respect of or to recover a debt or liquidated money demand,
b) that there are grounds, clearly stated upon which the claim is based
c) that is an averment stating the deponent’s or plaintiffs belief that the defendant has no defence to the claim, and
d) that there are grounds from the facts in the affidavit for believing that, prima facie, there is no defence to the claim.

It is only when a High Court is satisfied that the above requirements have been met by the facts deposed in the affidavit of a plaintiff, that it can properly enter the suit under the undefended list procedure provided for in the above provisions and mark the writ of summons accordingly along with a date entered thereon for the hearing. See Uko v. Ekpenyong (2006) ALL FWLR (324) 1972; Onadeko v. Union Bank Plc (2006) FWLR (301) 1872; Dalko v. UBN Plc (2003) FWLR (180) 1500, (2004) NWLR (862) 123; Dendon-West v. Muoma (2010) 2 NWLR (1177) 19; Ntekeim v. Oron Local Government (2010) 16 NWLR (1219) 209. Per MOHAMMED LAWAL GARBA, J.C.A.

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

Between

1. SURVEYOR EKERETE E. ETUKUDO (Chairman, Nigerian Institute of Surveyors, Akwa Ibom State Branch)
2. SURVEYOR A. A. ANLAK (Treasurer, Nigerian Institute of Surveyors, Akwa Ibom State Branch) Appellant(s)

AND

SURVEYOR E. B. AKPAN Respondent(s)

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): This appeal is from the decision of the High Court of Akwa Ibom State in suit No. HU/UND.147/2008, delivered on 23/7/2008 by which it entered judgment in part, under the undefended list procedure and transferred a part to the general cause list for determination.
The Respondent had taken out a writ of summons under the provisions of Order 23, Rule 1 of the Akwa Ibom State High Court Civil Procedure Rules, 1989 (to be referred to as High Court Rules after now) and after receipt of the writ, the Appellants had filed a notice of intention to defend the action accompanied by an affidavit disclosing a defence on the merit.
In the judgment appealed against, the High Court had found that the Appellants, had admitted the sum claimed by the Respondent less 10% thereof which was disputed by the parties, and so entered judgment in respect of the sum said to have been admitted and transferred the disputed 10% to the general cause list.
Aggrieved by that decision, the Appellants filed a notice of appeal against it on the 5/8/08 which was with the leave of the court, amended and further amended to make the total grounds therein, four (4). In the Appellants’ brief settled by M. D. Uyoh, Esq., filed on the 5/5/09 but deemed on 2/5/12, two issues were submitted for decision in the appeal as follows:-
“1. Whether the trial court had jurisdiction to hear the case under the undefended list or hear it all when the proper defendant was not before the court.
2. Whether the institution of Suit No. HU/UND.147/2008 was not an abuse of court process in view of the pendency of suit No. HU/71/2008 seeking the nullification of CADASTRAL SURVEY PRACTICE (In-house Guidelines/Bye-Laws) among other reliefs.”
The Amended Respondent’s brief was filed on the 23/5/12 and Mr. A. A. Asuquo, Esq, who settled it presented a single issue which he says arises for determination in the appeal. It is thus:-
“Whether the learned trial judge had jurisdiction in entertaining suit No. HU/UND.147/2008 and in entering judgment for the Respondent in the sum of N328,000.00 being the sum less 10% of the mandatory deposit admitted by the Appellants in their affidavit in support of notice of intention of defend filed in the lower court.”
In addition to the above issue however, the learned counsel had gone ahead to argue the issues raised in the Appellants’ brief even though he said they did flow from the grounds of the appeal.
On the 17/1/13, the briefs above were adopted by learned counsel for the parties at the oral hearing of the appeal and we were urged by each of them to uphold their respective submissions therein.
The learned counsel for the Respondent has rightly pointed out in his brief that the learned counsel for the Appellant has not indicated in the issues formulated by him from which of the grounds of appeal they were distilled. It cannot be over emphasized that diligence and good practice of brief writing in the appellate courts require that counsel should, at all times, indicate from which grounds of an appeal the issues they formulate for decision in the briefs of argument are distilled. This is because of the requirements of the principles of law that issues submitted for determination must derive or enure from the grounds of an appeal otherwise they would be incompetent and liable to be struck out.
Unless a clear indication is made in the brief, it is difficult for the court and other parties to now know from which grounds of an appeal issues were formulated as they would be left to assumption.
I have observed that after submissions the issue raised by him and the Appellants’ issues in the appeal, learned counsel for the respondent had raised and argued what appeared to be an objection at pages 10 – 15 of his brief. He seems to be challenging the jurisdiction of the court to have granted leave to the Appellants to file the Further Additional Ground 1 and to deem it and the Appellants’ brief as duly filed on the 25/2/12 and 2/5/12 respectively. The ground of the objection was that the Appellant ought to have first applied for and obtained leave to file the further ground before filing it and arguing same in his brief. That the court could not deem both the ground and the brief already filed in the same motion for leave, placing reliance on the decision of the court in Ekwulugo v A.C.B. Nig. Ltd. (2006) 6 NWLR (975) 30 at 42 and another.
Although there is no Reply brief from the learned counsel for the Appellants to answer to the objection, I would say that the objection appears to be a complaint or attack on the discretionary decision by the court to grant leave to file the further additional ground and to deem it and the Appellants’ brief already filed, to have been duly filed. It is an appeal couched in the form of an objection, on the jurisdiction of the court, against that decision.
The court cannot sit over an appeal over that decision and even if it could, being an interlocutory one, the appeal had to be filed within the period of 14 days from the date thereof or such time as may be extended by the court, under the provisions of section 24(1)(a) and (4) of the Court of Appeal, Act. In addition, the motion for leave by the Appellant was brought and decided by the court under the Rules of court, which do not deal with and in law cannot confer the court with jurisdiction, but only regulate the procedure the jurisdiction already conferred by the provisions of section 24 as of the 1999 constitution (as altered) would be exercised. See Anyaniwoko v Okoye (2000) 5 NWLR (1188) 497.
Furthermore, the decision to grant leave and deem at the same time was in exercise of the discretion vested in the court by the Rules and in the exercise of a judicial discretion by a court, the law is that no previous decision of the court or even a superior court, is binding on it. This is because the exercise of a judicial discretion one way or the other is entirely dependent on, the peculiar facts and circumstances disclosed in a case and very rarely, if at all, are facts and circumstances of two cases in the exercise of a judicial discretion, the same. As a result, to make a previous decision in the exercise of a court’s discretion binding for all cases would be to take away the discretion provided for in the Rules. That is the position of the law enunciated by the Supreme Court in the case of Anyah v African Newspapers of Nig. Ltd. (1992) 6 NWLR (247) 319 when it said:-
“In a question of discretion, the court exercising it cannot be bound by a previous decision, for that would in effect be putting an end to the discretion.”
Wali, JSC, then explained at page 3341 paragraph D that:-
“You cannot lay down hard and fast rules as to the exercise of judicial discretion by a court, for the moment you do that, the discretion is fettered.”
See also Long-John v Blakk (1998) 6 NWLR (555) 524 at 543; Ikhazuagbe v. COP (2004) T NWLR (872) 346 at 365. In the above, premises of the law, the decision of the court in the case of Ekwulugo v A.C.B. Nig. Ltd. (supra) does not bind the court in the exercise of the discretion to grant the Appellant leave to file the further additional ground and to deem it and the Appellants, brief as duly filed in the same application. The discretion of the court was exercised in the peculiar circumstances and on the unchallenged facts deposed to in the Appellants affidavit in support of the motion.
In addition, from the record of the court, even at the oral hearing of the Appellant’s motion on the 20/2/12, the learned counsel for the respondent did not raise any objection to the grant of any of the prayers contained on the motion paper. Can he in conscience, seriousness and the law, be now heard to raise any objection to the grant of any of the prayers on the said motion? He cannot at this stage after he had taken steps to react to both the ground and the brief objected to by him. See Duke v Akpabuyo Local Government (2006) ALL FWLR (294), 559; N.A.C.B. Ltd. v Salem-Farm Ltd. (2006) ALL FWLR (320) 1174; Amasike v Reg-Gen. C.A.C (2010) 13 NWLR (1211) 337. Furthermore, the law is now trite that even though a Respondent is at liberty to raise and argue a preliminary, where it was not moved before the adoption of the briefs in respect of the appeal or at all at the hearing, the objection is deemed abandoned. See Ajibade v Pedro (1992) 5 NWLR (241) 257.
The learned counsel for the Respondent did not move or even mention the objection he raised and argued in the Respondent’s brief at the hearing of the appeal and such an objection is deemed abandoned in law. For the above reasons, the objection is unmeritorious and is dismissed.
Looking at the grounds contained on the further amended notice of appeal, the Appellants issues are deriveable from them and so I intend to consider them in the determination of the appeal.
On the issue 1, learned counsel for the Appellants has submitted that the High court did not consider section 21(3) in Exhibit ‘B’ attached to the Respondent’s affidavit which makes provision for the approval for the percentage of a deposit to be applied and that the Respondent’s claim was not a liquidated money demand. He relied on Akwa Ibom Property & Investment Co. Ltd. v Surv. B.J. Akpan, an unreported decision of the court delivered on 28/6/07 in appeal No. CA/C/141/2004, among others and urged us to so hold.
In further argument, he said that the proper defendant was not before the High court because the Institute of surveyors to which the deposit paid by the Respondent and a juristic person, was not sued in the action. That the Appellants were not sued as representatives of the Institute, but as Chairman and Treasurer, against whom the Respondent had no right to any relief and so cannot be sued as defendants under order 11 Rule 3 of the High Court Rules, as well as on the authority of Okeaya-Inneh v Quality Finance Ltd. (2006) ALL FWLR (300) 1632. He then referred to authorities on the law that it is the plaintiff’s claim that determine a court’s jurisdiction and said the High court lacks the jurisdiction to entertain the matter under the undefended list. We were urged to so hold
On the issue 2, it was his submission that the Respondent had instituted the suit No. HU/71/2008 before the High Court seeking for the nullification of the Guidelines which provide for 10% charge on deposits and which the High Court used to enter judgment for the Respondent in the suit leading to the appeal. Paragraph 9(i) of the Respondent’s affidavit was referred to in which he was said to have admitted to filing the su1 No. HU/71/2008 and it was contended by counsel that the institution of the suit No. HU/UND/1472008 while suit HU/71/2008 was pending was an abuse of the court process, relying on Agwasim v Ojichie (2004) 8 NSCQR 359 at 367. Finally, we were urged to allow the appeal, strike out the Respondent’s case for lack of jurisdiction or, in the alternative, send back the case for hearing under the general cause list.
Since the learned counsel for the Respondent’s has addressed the Appellant’s issues as indicated earlier, I would confine my review of his submissions to those issues.
On the Appellants issue 1, the submissions are that affidavit evidence under the undefended list procedure, takes the place of pleadings and so any pleading admitted needed no further proof. Bunge v Governor, Rivers State (2006) 12 NWLR (995) 573 at 599 – 600 and Olufosoye v Olorunfemi (1989) 1 NWLR (95) 26 were cited on the law and it was further submitted that since the Appellants have admitted receipt of the Respondent’s deposit and that 10% retention charge was to be charged, the High Court had no other option than to enter judgment in sum claimed minus the 10% charge, as it did. Learned counsel said since the amount claimed was set down and only the percentage of it to be retained as a charge was in dispute, the High court was right to transfer it for determination on evidence. In addition, he said under the provisions of order 23, Rule 1, a suit is not automatically transferred to the general cause list because a defendant had filed a notice of intention to defend, but the defendant’s affidavit must disclose a defence on the merit before such transfer is ordered. It was his further contention that the cases cited by the Appellants are not helpful to them because the Respondent’s claim is for liquidated sum which the High court had jurisdiction to decide under the undefended list.
On the point that proper parties were not before the High Court, counsel argued that the issue was not raised before the High court and referred to paragraphs 7 of the Appellant’s affidavit and 6 of the Respondent’s affidavit to say that the issue is not even part of the Appellants’ grounds of appeal. He said all the cases cited in the Appellants’ brief on joinder of parties cannot apply to their case.
Learned counsel then submitted on Appellants’ issue 2 that the suit No. HU/71/2008 and the one from which the appeal came, are on separate and distinct issues, the parties and cause of action are different and so, the latter cannot be considered as an abuse of court process. He said a case is said to constitute an abuse of a court’s process if it is mala fide, an improper and irregular use of the process of court to the irritation or annoyance of an opponent; such as instituting a multiplicity of actions on the same subject matter, against the same parties. The case of C.O.M.I. v Cobham (2006) 15 NWLR (1002) 283 at 304 – 5 was cited on the definition and were urged to hold that the suit No. HUK/UND147/2008 is not an abuse of High Court’s process.
The provisions of Order 23, Rule 1 of the High Court Rules, the undefended list, provide that:-
“Whenever application is made to a court for the issue of a writ of summons in respect of a claim to recover a debt or liquidated money demand and such application is supported by an affidavit setting for the grounds upon which the claim is based and stating that in the deponent’s belief there is no defence thereto, the court shall, if satisfied that there are good grounds for believing that there is no defence thereto, enter the suit for hearing in what shall be called the “Undefended List”, and mark the writ of summons accordingly and enter thereon a date for hearing suitable to the circumstance of the peculiar case.”
These provisions (which are similar to the ones provided in the various High Courts Rules of the states in Nigeria) are intended to enable a plaintiff to get or obtain a summary judgment in his favour without going into lengthy trial in straight forward claims to which prima facie, a defendant has no defence which ought to be considered. However, before a High Court enters a suit under the undefended list, it has the duty to consider the affidavit of the plaintiff filed in support of the application for the issuance of the writ of summons and be satisfied as to the following:-
a) that the claim is in respect of or to recover a debt or liquidated money demand,
b) that there are grounds, clearly stated upon which the claim is based
c) that is an averment stating the deponent’s or plaintiffs belief that the defendant has no defence to the claim, and
d) that there are grounds from the facts in the affidavit for believing that, prima facie, there is no defence to the claim.
It is only when a High Court is satisfied that the above requirements have been met by the facts deposed in the affidavit of a plaintiff, that it can properly enter the suit under the undefended list procedure provided for in the above provisions and mark the writ of summons accordingly along with a date entered thereon for the hearing. See Uko v. Ekpenyong (2006) ALL FWLR (324) 1972; Onadeko v. Union Bank Plc (2006) FWLR (301) 1872; Dalko v. UBN Plc (2003) FWLR (180) 1500, (2004) NWLR (862) 123; Dendon-West v. Muoma (2010) 2 NWLR (1177) 19; Ntekeim v. Oron Local Government (2010) 16 NWLR (1219) 209.
When the writ of summons so marked and a date for hearing entered thereon is served on the defendant, then the provisions of Order 23, Rule 3(1) come into operation. It provides thus:-
“3(1) If the party served with the writ of summons and affidavit delivers to the Registrar a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit, the court may give him leave to defend upon such terms as the court may think just.”
The requirements of these provisions are that:
a) that the party to served, i.e. the defendant be served with the writ of summons and affidavit of the plaintiff
b) that the defendant when served and if he intends to defend the claims of the plaintiff, shall
i) delivered to the Registrar of the court a notice of intention to defend,
ii) an affidavit disclosing a defence on the merit.
If a defendant meets up with the above requirements, the court shall look at the averments in the affidavit accompanying the defendant’s notice of intention to defend, consider and then decide whether a defence on the merit is disclosed to the claims of the plaintiff. If a defence on the merit was disclosed in the affidavit, the court may then grant leave to the defendant to defend the action and consequently, transfer it to the general cause list for hearing. Where a defence on the merit was not disclosed, the court may refuse leave to defend and proceed to decide the action as undefended and may enter judgment at once or still require the plaintiff to call evidence, if it thinks fit. Similarly, where a defendant failed or neglected to deliver to the Registrar a notice of intention to defend as provided by the Rules, the court may enter judgment for plaintiff, as an undefended action or still call on the plaintiff to prove it as the court may think just. See order 23, Rule 3(2), 4 and 5 of High Court Rules. See Oloko v Ibe (2004) ALL FWLR (227), 562, (2004) 17 NWLR (903) 647; Abdullahi v. Buhari (2004) 17 NWLR (902) 278.

From the provisions for the undefended list procedure, it is clear that it is a peculiar and special procedure which enables a plaintiff to get judgment in respect of claims to recover debt or ascertained and precise sum of money had and received without undergoing the usual rigours and often time wasting process of a normal trial, but at the same time, ensuring that a defendant to such claims is not shut out completely since he is provided an opportunity to show that he has a defence on the merit before the procedure is concluded. So although it provides a quick or fast avenue for the disposal of such claims which are by their nature virtually incontestable or undefendable, yet it provides adequate opportunity and safeguard for doing substantial justice between the parties by the court. See Dala Air Services v. Sudan Airways (2004) ALL FWLR (238), 684, (2005) 3 NWLR (912) 394; Dalko v. UBN Plc (supra); U.T.C. v Pamotei (1989) 2 NWLR (103) 244, (2002) FWLR (129) 1557.

Because cases filed under the procedure are usually heard and determined on the affidavit evidence of the parties and most often judgment entered in appropriate cases for a plaintiff which in law, is one on the merit, the attitude of the courts is that the provisions for the procedure have to be followed strictly by trial courts in order not to create more problems than they are meant to avoid or solve. This was how the position was enunciated by Chukwuma-Eneh, JCA (now JSC) in the case of Uko v. Ekpenyong (supra) at 1947:
“The strict adherence to the rules under the undefended list procedure has to be so as the whole idea of summary judgment under the undefended list procedure lies in the face of an important principle of our jurisprudence of hearing the other party before he is demnified.”
See S.P.D.C.N. Ltd. v Arho-Joe Nig. Ltd (2006) ALL FWLR (331) 1330 at 1344 – 5; N.C.C.E. (NDI) v. Mabol Asso. Ltd. (2010) 2 NWLR (1179) 612.

Another established principle of judicial practice is that a liberal approach is adopted in the consideration of whether the affidavit of a defendant in the undefended list procedure, discloses a defence on the merit. Although the general requirement is that the affidavit should clearly show that the grounds for asking to be heard are not frivolous and/or craftily designed to frustrate the proceedings, a defendant is not required to show that his defence was complete and likely to succeed. Accordingly, as a general principle, where a defendant sets out facts in his affidavit with material details showing that he has a fair case for defence or reasonable grounds for setting up a defence, or even a fair probability that he has a bona fide defence, then he ought to be granted leave to defend the action. See Macgregor v. N.M.B. (1992) 2 SCNJ 72 at 82; Santory Co. v. Elabed (1998) 12 NWLR (579) 538 at 544; Pipreze v. Okokwo (1987) 3 NWLR (62) 737. Having laid the foundation for the consideration and determination of actions under the undefended list procedure, I would now turn to the facts deposed in the affidavit evidence before the High Court.
The relevant depositions in the Respondent’s affidavit, as plaintiff, are paragraphs g and 10 which are thus:-
“9.(a) That Surveyor that require beacon stones known as and called SURCON beacon stones must apply to the 1st Respondent, pre-pay a fee of N1,000.00 per properly beacon which sum is disbursed as provided in Rule 21(A)(i),(ii),(iii),(iv) and (v) of Exhibit ‘B’ attached herewith.
(b) That evidence of pre-payment is then presented to the 2nd Respondent who may or may not issue receipt for such payments less the cost of SURCON beacon stones.
(c) That the applying Surveyor will then be issued with the requisite SURCON beacon stones to enable him practice his profession.
(d) That the amount retained by the Nigeria Institution of
Surveyors in the branch, in this case Akwa Ibom State Branch is called mandatory Deposit which is refunded or paid back to the Surveyors on quarterly basis less 2’bd% service charge.
(e) That Surveyors year commences on 1st January of every year and so the first quarter thereto ends on 31st March, 2008.
(f) That within the first quarter of Surveyors year, I paid mandatory deposit in the total sum of N420,000.00. Attached as Exhibit C. C1 and C2 are such payments. The value of those exhibits are refundable as per the provisions of section 21 of Exhibit ‘B’ attached herewith. My refund in this case is the sum of N409,500.00.
(g) That it is the requirement that mandatory deposits are refundable to surveyors as soon as the quarter is due. Surveyors are not even bound to make written demands before such deposits are refunded because such deposits are recorded in the books of the Branch and on oral demand assigned for.
(h) That I went to the 1st Respondent to demand for my mandatory deposit on 3rd April, 2008 but to my greatest surprise, the 1st Respondent ignored the invited the 2nd Respondent and before me informed the 2nd Respondent that my mandatory deposit must not be paid to me.
(i)That all the practicing surveyors except my humble self and one Surveyor Uyah have collected their mandatory deposits from the Respondents.
(j) That following various abuses by the 1st Respondent, I and the said Surveyor Uyah instituted suit No. HU/71/08 in which the 1st Respondent is a party. The suit aforesaid is for the interpretation of the Laws governing Surveying Practice in Nigeria and by extension in Akwa Ibom State.
(k) That the 1st Respondent has boasted that he will withhold my mandatory deposit to frustrate me, especially from prosecuting suit No. HU/71/08.
10. That A.A. Asuquo, Esq. informs me and I verify believe him that the sum for which the Respondents is refusing to pay to me is a liquidated sum, due to me and for which the Respondents are without any defence. The Respondents issued Exhibit C, C1 and C2 and rightly indicated that those exhibits are mandatory deposits which are refundable as reflected in the Rules governing practice of surveying in Nigeria.”
The Appellants, as defendants, have deposed in the affidavit in support of the notice of intention to defend, as follows in reaction to the averments of the Respondent above: –
“9. That paragraph 9(a)-(i) of the affidavit are not admitted. In further answer, the 1st Defendant repeats paragraphs 6 and 7 above.
10. That paragraph 9(j) of the affidavit is admitted to the extent that the Plaintiff and one Surv. Uyah has instituted action against me and the Surveyor General, Akwa Ibom State, who is also the Chairman of SURCON State Committee on Ethics, Akwa Ibom State (The Ethics Committee). In further answer to the said paragraph 9(j), I state that the Plaintiff is claiming among other reliefs “An order nullifying the use of document titled “CADASTRAI SURVEY PRACTICE GUIDELINES” in Akwa Ibom State for the regulation of Survey Practice in conjunction and/or side by side with the Law and Rules.” The Originating Summons of the Plaintiffs in the said suit is exhibited hereto and marked ‘3’.
13. That paragraph 10 of the affidavit is not admitted. The claim of the plaintiff is not a liquidated sum. The plaintiff claim is not up to the amount claimed.”
Paragraphs 6 and 7 which are to be repeated in paragraph 10 above are thus:-
“6. That paragraph 7 of the affidavit is admitted to the extent that the 1st and 2nd Defendants are the Chairman and Treasurer of the Nigerian Institution of Surveyors, Akwa Ibom State Branch. In further answer to the said paragraph, the 1st Defendant states that Mandatory Deposit attracts 10% handling charge to the Nigerian Institution of Surveyors (N.I.S.) as stipulated in Guideline 5.0. (1) among others.
7. That paragraph 8 of the affidavit is admitted to the extent that all Registered Surveyors are bound by the Rules. In further answer to the said paragraph, the 1st Defendant states that all Practicing Surveyors in Akwa Ibom State including the Plaintiff are also bound by the GUIDELINES same having been duly approved by SURCON as stipulated under schedule 1 Section 4(3) of Surveyor’s Registration Council of Nigeria Act Cap. 425 Laws of the Federation of Nigeria, 1990.”
The claim by the Respondent in the above paragraphs of his affidavit is simply that he had paid a deposit of N420,000.00 to the Appellants for SURCON beacon stones and he was issued receipts by them. That he was entitled to a refund of the deposit from the Appellants who would deduct 2 1/2% thereof as service charge and so he was to be paid the sum of N409,500. That the Appellants have refused to refund the said sum and they have no defence to the claim
On their part, the Appellant’s case, particularly in paragraphs 6 and 13 is that the deposit by the Respondent attracts 10% handling charge and so the sum claimed by the Respondent “is not up to the amount claimed”. Clearly, the Appellants have not in any express way denied that the Respondent had paid the mandatory deposit in question to them and that he was entitled to a refund of same after the deduction of a handling or service charge by them. Similarly, the Appellants did not in their affidavit deny that they have not paid the Respondents whatever sum he was entitled to as a refund of his deposit with them. Because there was no express denial of these vital facts by the Appellants in their affidavit, they are deemed to have conceded to and admitted them as correct and true. See Globe Fishing Ind. V Coker (1990) 11 SCNJ, 56; Lijadu v Lijadu (1991) 1 NWLR (169) 627; Lawson-Jack v SPDC (2002) LRCN (102) 2021 at 2034. In law therefore, the Appellants are deemed to have admitted that the Respondent had made the mandatory deposit to them and they have not refunded it to him after deduction of handling charges as provided for in the professional guidelines which bind all of them. The only dispute between the parties as far as the affidavit evidence is concerned, is as to the percentage to be deducted by the Appellants from the deposit paid to them by the Respondent as handling charges, The Appellants say it is 10% while the Respondent says it is 2 1/2%. The High Court was therefore right when it stated in the ruling appealed against that:
“Following from the depositions in the affidavit in support of the Notice of intention to defend the suit, I find that the grave of the respondent in this case is on the percentage of the money which should be retained as mandatory deposit. While the plaintiff claims that the percentage is 2 1/2% of the defendants are maintaining that it should be 10%. Outside of this I do not see any other controversy in the matter.”
On the state of the affidavit, evidence before the High Court, can the Appellants’ affidavit to be said to have disclose any defence whatsoever to the claims of the Respondent let alone a defence on the merit as required under the provisions of Order 23, Rule 3(1)? Without any difficulty, the Appellants’ affidavit did not disclose any defence at all to the claims by the Respondent. In fact, the affidavit of the Appellants did not show that they have a fair case for a defence or reasonable grounds for setting up a defence, or even a fair probability that they have a bona fide defence to the respondent’s claim. The affidavit rather tacitly admitted the material facts of the Respondent’s claim rather than disclosing a defence on the merit.
The learned counsel for the Appellants had argued that the claim did not involve or was not a liquidated money demand.
Liquidated demand has been defined to mean:-
“a demand, the amount of which has been ascertained or settled by agreement of the parties or otherwise.”
See Donton-West v Muoma (supra) at 38.
Similarly, in the case of G.M.O.N. & S Co. v Akputa (2010) 9 NWLR (1200) 443 at 463, the Supreme Court had defined liquidated demand in the following terms:-
“The factors for determining whether a sum is liquidated are as follows
a) the sum must be arithmetically ascertainable without further investigation;
b) if it is in reference to a contract, the parties to the contract must have mutually and unequivocally agreed on a fixed amount payable on breach;
c) the agreed and fixed amount be known – prior to the breach.”
A liquidated demand or liquidated money demand as used in the provisions of Order 23(1) of the High Court Rules, can easily be said to be a claim for a debt or specific sum of money due or payable and its amount must lie already ascertained or capable of being ascertained as a matter of simple arithmetic or calculation without any other or further investigation. Therefore, whenever the amount claimed by a plaintiff in a case can be ascertained by calculation or fixed by a scale of charges or other positive data already before the court, it is said to be liquidated or made clear for the purposes of the undefended list procedure
Applying the above definition to the claim by the respondent, the averment in his paragraph 9(f), is for the sum of N409,500.00 out of the deposit of the sum of N420,000.00 he made to the Appellants as stipulated in their professional guidelines. Both amounts are already ascertained and calculated by ordinary arithmetics. Since the sum deposited with the Appellants by the Respondent is fixed and not disputed and the Respondent is entitled to a refund thereof after deduction of the handling charges, also fixed by the professional guidelines, the amount claimed can be ascertained without further investigation. All the materials essential for the calculation of the sum claimed are in the parties affidavit evidence before the High Court and would require no further investigation to be ascertained. The claim is therefore a liquidated demand in law for that purpose of the undefended list procedure.
The last point argued by the learned counsel under the issue is that because the Nigeria Institute of Surveyors (NIS) was not sued in the Respondent’s suit, the proper defendant was not before the High Court.
However, the Appellants who asserted that the NIS is a juristic person that can sue or be sued have not demonstrated the assertion with evidence of such a statement in their affidavit. It is their legal duty to prove the juristic status of the NIS which they asserted in their affidavit and they did not do so. In addition, the Appellants have admitted paragraphs 7 of the Respondent’s affidavit in their paragraph 6 and deemed to have admitted paragraph 9(f) of the Respondent because there was no express traverse thereof, both of which are to the effect that Respondent paid the deposit to them as they Chairman and Treasurer of NIS, Akwa Ibom State Branch and they issued him with receipts; Exhibits C, C1 and C2 attached to his affidavits. Being the accounting officers of the Akwa Ibom State Branch who are responsible for the release of refund of mandatory deposits, as deposed to in paragraph 7 by the Respondent, it is against the Appellants that the Respondent has a right to the relief of the refund of the due amount of the deposit he paid to them.
Consequently, they are properly sued by the respondent as defendants under the provisions by Order 23(1) of the High Court Rules. Although I agree with the learned counsel for the Appellants that it is the plaintiffs claim before a court that is used to determine whether or not the court has jurisdiction to entertain a case,

non-joinder of parties in a case, is not an issue which goes to the jurisdiction of a court to entertain a case. As long as there is at least one competent plaintiff and a competent defendant in a case, the jurisdiction of a court in respect of constitution of the parties to the case, would not be affected. See Onibudo v. Abdullahi (1991) 2 NWLR (172) 230; CRSN Corp. v. Oni (1995) 1 NWLR (371) 270; WR & PC Ltd. v. Onwo (1990) 12 NWLR (630) 312; Cotechna Int’l Ltd. v. Churchgate Nig. Ltd. (2010) 18 NWLR (1225) 346. Because the Appellants’ are not and did not challenge their own competence in the sense of being legally capable of suing or being sued, the absence of the NIS against which the Respondent did not make any claim in the suit, did not render the suit incompetent thereby robbing the High Court of the required jurisdiction to entertain it.
In the result, for all I have said above, I find no merit in the Appellants’ issue 1 which is resolved against them.
Issue 2: whether the respondent’s suit is an abuse of the High Court process because of the pending suit No. HU/71/2008.
Let me start a consideration of the issue by saying that the term “abuse of court process” is one generally applied to proceedings or processes of a court that are wanting in bona fide, frivolous, vexatious, oppressive. It may mean abuse or improper use of the legal processes of a court and always involves some bias, malice and deliberate desire to misuse and pervert processes of a court. The term is incapable of precise definition as if may manifest itself in various forms and ways depending on the peculiarities of a case. However, it is recognized in law that it is an abuse of a court process for a party to improperly use the issue of the judicial process to the irritation, annoyance and embarrassment of an opponent by instituting a multiplicity of actions on the same issues against him.” See Okafor v. Attorney-General, Anambra (1991) 6 NWLR (200) 59; Olutinrin v. Agaka (1998) 6 NWLR (554) 366 at 375; Saraki v. Kotoye (1992) 9 NWLR (264) 156 at 188; N.V. Scheep v. M.V.”S’ Araz” (2001) FWLR (34) 543 at 589.
The learned counsel for the Appellants has contended that the Respondent’s suit in an abuse of court process because the Respondent had in suit HU/71/2008 sought to nullify the professional guidelines of the NIS, Akwa Ibom State Branch and that the 1st Appellant was a party to that suit. He did not however proceed in the brief of argument to demonstrate how or in what manner the institution of the suit resulting into this appeal constituted an abuse of the process of the High Court. It is not enough or sufficient for counsel to merely assert that there is an abuse of a court’s processes without showing clearly from the facts and circumstance of his case how the abuse arose or how such facts constitute the alleged abuse.
If the learned counsel mean that the institution of the action amounts to multiplicity of action because suit HU/71/2008 is pending, he did not go on to show that the subject matter, the issues and the parties in the two cases are the same such as would reasonably in the circumstances of the case, irritate, annoy or embarrass the Appellants and so an improper use of the judicial process. From the affidavit evidence exhibited by the Appellants; in respect of suit HU/71/2008, the case is for the interpretation of the professional guidelines of the NIS and declarations sought therein by the Respondent.
Though the 1st Appellant was a party in that suit, the subject matter and issues are clearly not the same with the suit of the Respondent claiming the refund of the deposit he paid to the Appellants and which they did not deny was due and payable to him. Even the parties in the two cases are not the same. So where lies the alleged abuse of the court process? Certainly the case of Agwasun v. Ogichie (supra) cited by the learned counsel for the Appellants on the issue did not decide that the filing of two suits by a plaintiff simpliciter, amounts to an abuse of a court’s process and does not avail the Appellants here. The Appellants in Agwasim v Ogichie had filed an appeal against an order by this court striking out their appeal, to the Supreme Court and at the same time, filed an application before this court for the relisting of the appeal struck out. The Supreme Court held that the two (2) processes, i.e. the appeal before it and the application before this court were all aimed at achieving the same object; relisting the appeal struck out by the court and so the application before this court was an abuse of the court’s process. That was a case in which the parties, the subject matter and issues in both processes were the same unlike in the two cases filed by the Respondent before the High Court.
Perhaps I should emphasize that principles of law established in judicial authorities are to be applied only when the facts and circumstances of the cases in which they were decided are the same or very substantially similar to the ones in which they were cited by counsel. Situations in which multiplicity of actions may amount to an abuse of a court’s process were set out in the case and the Respondent’s suits do not fall in any of them.
I can find no element of fact in the institution of the two suits by the Respondent which may be said to amount to an abuse of the High Court process. The issue therefore fails and is resolved against the Appellants.
In the final result, I find no merit in the appeal and dismiss same accordingly. The decision of the High Court entering judgment as per admission by the Appellants and transferring the part in dispute to the general cause list for decision is affirmed.
Costs assessed at N50,000.00 is awarded in favour of the Respondent to be paid by the Appellants.

UZO I. NDUKWE-ANYANWU, J.C.A: I am in total agreement with the judgment just delivered by my learned brother Mohammed Lawal Garba, JCA. I adopt the reasoning and conclusions as mine. I also abide by all the consequential orders in the lead judgment in dismissing this Appeal.

JOSEPH TINE TUR, J.C.A: I read an advance copy of the judgment delivered by my Lord, Mohammed Lawal Garba, JCA and I concur that the appeal lacks merit and should be dismissed. I shall add the following comments:
Paragraph 9(f)-(k) of the Respondent’s affidavit in support of the application brought under the Undefended List Procedure in the lower court read as follows:
“(f) That within the first quarter of Surveyors year, I paid mandatory deposit in the total sum of N420,000.00. Attached as Exhibit “C”, “C1” and “C2” are such payments. The values of those exhibits are refundable as per the provisions of Section 21 of Exhibit “B” attached herewith. My refund in this case is the sum of N409,500.00.
(g) That it is the requirement that mandatory deposits are refunded to surveyors as soon as the quarter is due. Surveyors are not even bound to make written demands before such deposits are refunded because such deposits are recorded in the books of the Branch and on oral demand assigned for.
(h) That I went to the 1st Respondent to demand for my mandatory deposit on 3rd April, 2008 but to my greatest surprise, the 1st Respondent ignored me, invited the 2nd Respondent and before me informed the 2nd Respondent that my mandatory deposit must not be paid to me.
(i) That all the practicing surveyors except my humble self and one surveyor Uyah have collected their mandatory deposits from the Respondents.
(i) That following various abuses by the 1st Respondent, I and the said Surveyor Uyah instituted suit No. HU/71/2008 in which the 1st Respondent is a party. The suit aforesaid is for the interpretation of the Laws governing Surveying practice in Nigeria and by extension in Akwa Ibom State.
(k) That the 1st Respondent has boasted that he will withhold my mandatory deposit to frustrate me, especially from prosecuting suit No. HU/71/2008.”
In response to the above averments the 1st appellant deposed in the affidavit in support of the Notice of Intention to Defend the suit in the lower court as follows:
“9. That paragraph 9(a)-(i) of the affidavit are not admitted. In further answer, the 1st defendant repeats paragraphs 6 and 7 above.
10. That paragraph 9(i) of the affidavit is admitted to the extent that the plaintiff and one Surveyor Uyah has instituted action against me and the Surveyor-General, Akwa Ihom State, who is also the Chairman of SURCON State Committee on Ethics Akwa Ibom State (The Ethics Committee). In further answer to the said paragraph 9(j) I state that the plaintiff is claiming among other reliefs ‘An order nullifying the use of document titled “CADASTRAL SURVEY PRACTICE GUIDELINES” in Akwa Ibom State for the regulation of Survey Practice in conjunction and/or side by side with the Law and Rules.” The Originating Summons of the plaintiffs in the said suit is exhibited hereto and marked as ‘3’.
11. That apart from filing a counter affidavit in the said suit, a counter-claim has been filed seeking among others for the interpretation of the Court, whether the Ethnics Committee has the powers to make the said Guidelines. The said counter affidavit and the counter claim are exhibited hereto and marked Exhibits “A” and “5”.
12. That paragraph 9(k) of the affidavit is not admitted. In further answer to the said paragraph, the 1st defendant states that since the suspension of the plaintiff as the State Secretary of Nigeria Institution of Surveyors, Akwa Ibom State Branch and his membership from the Branch following his conspiracy with Surveyor Ebong Uyah to murder Surveyor B.J. Akpan, the 1st defendant have not had closed contact with the plaintiff nor boast that his mandatory deposit will not be refunded.”
The Respondent exhibited three receipts evidencing the total sum of N420,000,000 paid to the appellants. They are Exhibit “C”, “C1” and “C2. The appellants’ affidavit was silent as to the purport of Exhibits “C”, “C1” and “C2”. This is a situation where documentary exhibits are to be used to resolve the bare-faced denials of the appellants in their affidavit in support of the Notice to Defend the suit under the undefended List Procedure. See Nwosu vs. Imo State Environmental Sanitation Authority & Ors. (1990) 4 SCNJ 97;
Fashanu vs. Adekoya (1974) 6 SC 83; Olujinle vs. Adeagbo (1988) 2 NWLR (Pt.75) 238 at 255 and Kimdey vs. Military Governor of Gongola State (1988) 2 NWLR (Pt.77) 445 at 473. Paragraphs 10 to 12 of the affidavit in support of the suit being heard as undefended avers as follows:
“10 That A.A. Asuquo, Esq. informs me and I verily believe him that the sum for which the Respondents is refusing to pay to me is a liquidated sum, due to me and for which the Respondents are without any defence. The Respondents issued Exhibit “C”, “C1” and “C2” and rightly indicated that those exhibits are mandatory deposits which are refundable as reflected in the Rules governing practice of survey in Nigeria.
11. That A.A. Asuquo, Esq. informs me further and I verily believe him that the Respondents are without any defence to this suit, same being liquidated money demand.
12. That I know as a fact that my money is in the custody of the Respondents which money they deliberately withhold despite my Exhibit “D” attached.”
The appellants joined issue in their affidavit in support of the motion to defend the suit as follows:
“13. That paragraph 10 of the affidavit is not admitted. The claim of the plaintiff claim is not up to the amount claimed.
14. That by the provisions of Guidelines 14.3 the Defendants are prohibited from dealing with the plaintiff.
15. That paragraph 11 of the affidavit is not admitted. The defendants have a defence to the action. The claim of the plaintiff is subject to the provisions of the Rules and the Guidelines.
16. That paragraphs 12, 13, 14 and 15 of the affidavit are not admitted.”
In the face of Exhibits “C”, “C1” and “C2” one can see that the deponent in the affidavit in support of the Notice of Intention to defend the suit lied on Oath. There was no challenge to the authorship of Exhibit “C”, “C1” and “C2” nor that the money claimed was not in the custody of the appellants. I endorse the findings of the learned trial Judge at page 165 lines 5-16 0f the printed record where His Lordship held that:
“In the circumstance therefore, I hereby enter judgment for the plaintiff in the sum claimed by him less than 10% of the amount. This translate to the sum of N378,000,000 (Three Hundred and Seventy-eight thousand Naira). This is the difference between the sum of N420,000.00 (Four Hundred and Twenty Thousand Naira) and 10% thereof which is the sum of N42,000.00 (Forty Two Thousand Naira). I hereby order that the balance of the claim be transfer to the general Cause List for hearing and determination. I make no order as to cost at this stage. This case is adjourn to the 30th day of October, 2008 for mention.”
The holding is amply supported by the oral and documentary exhibits – “C”, “C1” and “C2”.
For these and the fuller reasons given, I also dismiss this appeal and abide with the orders made by my Lord.